Federal Supreme Court: Unrestricted Review of Arbitral Awards in Antitrust Matters

by Lena Rindfus, Stefan Horn and Peter Bert

In a recent decision, the Federal Supreme Court (Bundesgerichtshof) held that German courts have jurisdiction to fully review arbitral awards applying competition law, if such an award is before them in enforcement or setting aside proceedings. The prohibition of a révision au fond, that is, a substantive review of the arbitral award by the ordinary courts, which is part of both the German domestic arbitration law and the New York Convention, does not apply in that context. Hence, lengthy and complex arbitral proceedings could end up being just “first instance proceedings” on their way to the ordinary courts if they relate to competition law matters. Continue reading

Intra-EU Investment Arbitration: Frankfurt Court of Appeals Finds BIT-Based Arbitration Inadmissible

An Austrian and a Croatian bank commenced arbitral proceedings against the Republic of Croatia seeking damages on the basis of the 1999 Agreement between the Republic of Austria and the Republic of Croatia for the Promotion and Protection on Investments (BIT); the arbitral tribunal was to be seated in Frankfurt am Main. Croatia applied to the Frankfurt Court of Appeals (Oberlandesgericht) to find that the arbitral proceedings were inadmissible (Sec. 1032 para. 2 German Code of Civil Procedure, ZPO). Croatia relied on the 2018 Achmea decision of the European Court of Justice (ECJ) – the well-known case which also originated in the Frankfurt Court of Appeals and came to the ECJ via a reference from the German Federal Supreme Court (Bundesgerichtshof). Continue reading

Reimbursement of Translation Costs Incurred by Foreign Party in German Proceedings

If a foreign party to court proceedings in Germany requires translations of German language documents produced for and/or exchanged in these proceedings, the costs incurred for translations can quickly become significant. The fundamental rule is that the costs have to be reimbursed by the opponent as costs necessary to conduct the proceedings, if the foreign party succeeds in the litigation. A recent decision of the Court of Appeals (Oberlandesgericht) Frankfurt provides a very useful summary of the case law and dismisses many of the standard objections that losing parties tend to raise. Continue reading

Frankfurt Court of Appeal: Arbitrator’s Dissenting Opinion Violates Public Policy

To the best of my knowledge, this is the first time that a German court has gone on the record on the issue of dissenting opinions in arbitration: The Frankfurt Court of Appeals (Oberlandesgericht) has taken the view that the publication of a dissenting opinion by the minority arbitrator violates the procedural ordre public, thus constituting a reason to set aside the arbitral award pursuant to Section 1059 para. 2 no 2 b) of the German Code of Civil Procedure (Zivilprozessordnung, ZPO). I discuss the decision in detail in a post at the Kluwer Arbitration Blog. Here’s the summary: Continue reading